In
light of In re Amendments to Florida Evidence Code,
SC19-107, 2019 WL 2219714 (Fla. May 23, 2019), we withdraw
our opinion dated May 8, 2019, which renders the State's
amended motion for rehearing of that decision moot. We grant
appellant's first amended motion for rehearing directed
to our opinion dated December 13, 2017, and we substitute
this opinion in place of our prior opinions.

Appellant,
Jabari Kemp, appeals his convictions for five counts of
vehicular manslaughter. The charges stemmed from an
automobile crash that resulted in the tragic deaths of five
young people. At trial, the principal issue was whether
appellant operated "a motor vehicle . . . in a reckless
manner likely to cause the death of, or great bodily harm to,
another." § 782.071, Fla. Stat. (2012). A key
factual dispute on this issue was whether appellant was in
control of the car at the time of the crash. To prove this
disputed element, the State relied on expert opinion
testimony that appellant had applied the brakes before the
crash. The expert's braking opinion was based solely on
his visual observation of crush damage to the victims'
car.

We
reverse for a new trial. We conclude that the trial court
abused its discretion in admitting expert testimony that did
not meet the requirements of Daubert v. Merrell Dow
Pharmaceuticals, 509 U.S. 579 (1993). The expert's
braking opinion was not shown to be based upon sufficient
facts or data, was not shown to be the product of reliable
principles and methodology, and amounted to little more than
a subjective and unverifiable opinion.

Facts

On the
night of the accident, appellant was driving a Mercedes coupe
northbound on I-95 and exited at Blue Heron Boulevard.
According to the lead accident investigator, the curvature of
the Blue Heron exit "would require a person to make
their vehicle maneuver in such a way to make that
curve."

Appellant's
car sped down the exit ramp and ran the red light at the end
of the ramp. The car continued straight into the
perpendicular lanes of traffic and crashed into the side of a
Lexus sedan that was proceeding eastbound with the green
light. The State presented expert testimony that
appellant's vehicle impacted the Lexus at about 128 mph.
Both cars went across the median and came to rest beyond the
westbound lanes of traffic.

When
paramedics arrived, appellant was awake but was "mostly
in and out of consciousness." Appellant had to be
extricated from his vehicle.

The
five young people in the Lexus died as a result of the
accident.

One of
the factual disputes at trial was whether appellant had lost
consciousness shortly before the crash. The State was
required to prove at trial that appellant operated his motor
vehicle "in a reckless manner likely to cause the death
of, or great bodily harm to, another," which is a
required element of vehicular homicide.[1] However, evidence
that a defendant merely lost control of a vehicle is
insufficient, without more, to prove reckless driving.
Smith v. State, 218 So.3d 996, 998 (Fla. 2d DCA
2017).

Appellant's
defense was that he fainted at the wheel and did not have
control over the car at the time of the collision. He
testified that he felt "very faint" about "a
second or two" into the Blue Heron exit from I-95. He
explained that he had never fainted before and did not know
he was going to pass out. He recalled driving 65 to 70 mph
before he lost consciousness. The next thing he remembered
was waking up at the hospital.

Defense
counsel argued that appellant's height and manner of
sitting in the Mercedes likely caused appellant's foot to
press on the gas pedal after he passed out. According to
defense counsel, this would explain how the vehicle could
have gotten up to 128 mph as appellant exited I-95. Appellant
testified that he was 5'11'', that his Mercedes
sports car sat "kind of low," and that the gas
pedal was "very responsive."

An
eyewitness described seeing appellant's car coming down
the off-ramp: "It was a flying like it was - it was like
somebody was unconscious in the car just going, [vroom]. It
was - I thought it was flying because it wasn't turning,
it was just going straight. It was just, like - like a plane
diving." According to this witness, appellant's car
was not braking.

A
police officer at an unrelated traffic stop about 400 feet
away from the accident "heard the sound of tires
screeching on a highway effectively applying brakes and then
I heard a large pop or a bang which was indicative of a
collision having occurred." However, the officer did not
see the accident, nor did he know which car made the
screeching sound.

Corporal
Johnson was the lead investigator in the case. He testified
that appellant's vehicle left tire marks on the exit
ramp. He could not say that the tire marks were indicative of
braking immediately before the crash. He explained that tire
marks could be from steering input, braking, or "a
number of factors." He claimed that tire marks would
require driver input. However, he admitted that he could not
state with certainty that appellant was in control of his
vehicle at the time of the collision.

Corporal
Johnson was assisted by Corporal Dooley, who performed the
speed calculations.

Both
issues on appeal arise from Corporal Dooley's testimony.
Over appellant's Daubert[2] objection and another
objection to the late disclosure of Dooley's braking
opinion, [3] the trial court admitted Dooley's
opinion that the damage to the Lexus indicated that appellant
was braking his vehicle as the collision occurred.

Before
trial, defense counsel specifically argued that Dooley's
braking opinion should be excluded under Daubert
because the opinion was not based on any calculations and
lacked "a foundation in any form of science." The
trial court did not rule on the Daubert issue at
that time.

When
Dooley testified, he explained that he inspected the vehicles
after the accident for "crush damage," mechanical
defects, tire malfunction, and damage profiles. Damage
profiles show the angle of approach from the vehicle, how far
the crush went into the vehicle, and the angle of departure.

Dooley
claimed that sometimes there is damage that indicates whether
braking occurred at the point of impact between two cars:

[CORPORAL DOOLEY:] When you have two cars that are relatively
similar in height . . ., as somebody is approaching a car . .
. they are not paying attention or whatever it is, and at the
last second they brake right before impact. And the front end
will dip and it will go down and it will smack the rear of
the car or whatever the case is. Normally, that's from
you're traveling at a speed and as you hit the brakes,
center mass, the momentum is going forward so it's going
to push that momentum forward causing the front end to dip.
I'm sure we have all done it, whether you accelerate and
the front end goes up, or you hit the brakes and the front
end goes down, but that's what we are looking for is how
up the damage profile is. . . . What we have here is, up to
here this is the right rear passenger door of the Lexus. And
as you can see here, it's kind of bowed out a little bit,
and then when you look further down you notice how it appears
to get deeper and deeper and deeper. When you get down to the
bottom of it that's the frame right there, okay? So when
you look at this damage profile this to me is obviously a
significant impact. But when you have all of this up here,
which is kind of in line with whatever the car may or should
have been, and then as you start looking down, down, down, it
starts to get deeper and deeper and deeper as you get down to
the -

At this
point, the defense objected, and the court permitted voir
dire before Corporal Dooley rendered his opinion:

[CORPORAL DOOLEY]: Well, when you have such a tremendous
speed going down and so much energy and momentum, the car is
-- if it's not dipping, or going up, or accelerating,
it's going straightforward. Whatever it's going to
hit and when it hits you would have the crushing factor. It
would be more upright but, again, like I said, when I see
this based on everything I've seen in the past, all my
training and experience, it shows me that the car hits and
goes down, is what it tells me. That's all I can testify
to. That's what it tells me is that it hits but it's
going down.

THE COURT: And that is consistent within a reasonable degree
of scientific certainty with braking of the Mercedes?

[CORPORAL DOOLEY]: I can't tell you about the scientific
--or anything about the braking of the Mercedes. What I can
tell you is the overall dynamics of a car to require to have
shocks and struts and all these things and if you are
accelerating, the front will go up. If you are decelerating
it goes down -- that's all I can -- I'm just telling
you what it means to me.

THE COURT: Is it consistent with braking?

[CORPORAL DOOLEY]: Yes.

THE COURT: Is it consistent with any other scenario other
than braking?

[CORPORAL DOOLEY]: I, personally, cannot think of anything
that it would be consistent with --

THE COURT: Okay.

[PROSECUTOR]: If I could ask him one additional question. . .
. When the Judge asked you if it's within a degree of
scientific certainty, when we talk about science what you are
discussing deals with a car going downward, deals with the
laws of physics and momentum, correct?

[CORPORAL DOOLEY]: Yes, ma'am.

[PROSECUTOR]: Okay. And that would be science?

[CORPORAL DOOLEY]: Yes, ma'am. . . .

[DEFENSE COUNSEL]: Are there any studies on this dipping
effect, the curling downward?

[CORPORAL DOOLEY]: I'm sure that there are but I
can't quote anything specific.

[DEFENSE COUNSEL]: None that you have read?

[CORPORAL DOOLEY]: Yes, we've actually -- when we go out
and we do a lot of these more specific schools, like I
testified to earlier . . . that I've attended, we go out
and we will crash vehicles, we will throw motorcycles off the
back of trucks and watch them spin, but to classify like
as actually studying I personally cannot recall anything
specific dealing with it. Other than talking about
momentum in general when weights are transferred from the
center mass forward because that's where the momentum was
going. And as they apply the brakes, the momentum shifts
forward, and as you accelerate, the momentum shifts
backwards, talking about dynamics of how cars work. But as
far as quoting an actual case study or a doctor or scientist
or whomever may have been out there looking at it, I
can't tell you.

[DEFENSE COUNSEL]: Okay. And that would have nothing to do
with the fact that the Lexus was a heavier vehicle at the
time?

[CORPORAL DOOLEY]: Heavier vehicle and damage profile, I
can't see any type of issue with that but it just appears
like I said this, I'm just testifying as to what this
looks like to me --

[DEFENSE COUNSEL]: Okay. Thank you. . . .

THE COURT: Corporal, is this -- is this type of downward arc
in damage something that is taught at you know accident
reconstruction classes that you have done?

[CORPORAL DOOLEY]: There are examples that are given.
Unfortunately, you can't cover every single type of
scenario that a crash will happen in, but no there are
examples given and again explain to you how when a vehicles
weight shifts and different things like that and we learn
about speed calculations if a car swerved to avoid and all of
the load goes to one side, and it will leave a tiny thin
mark. We learn about weight transfer and momentum transfer,
and then we go into when vehicles collide with others and how
they transfer their momentum or kinetic energy to the other
vehicle. But we do learn about these things, but I can't
quote you anything specific off the top of my head as to a
case study or somebody who is in the know, specifically.

(Emphasis
added).

The
trial court ruled that Dooley's braking opinion was
admissible under Daubert, concluding that the
opinion was based on Dooley's training and was
sufficiently reliable to be admitted.

Dooley
then testified that the crush damage to the Lexus went
downward in "an arc-type fashion," which indicated
that the front end of appellant's car was dipping as it
was colliding with the Lexus. If a car is dipping, Dooley
explained, this indicates "that there is some type of
braking or driver input." Dooley asserted that if
appellant's vehicle had not been dipping, there would
have been "more of a flatter type crush pattern."
Dooley claimed that the damage to the Lexus starts at the
normal height one would expect, but arcs downward. According
to Dooley, it was the arc of the damage to the Lexus-not its
height from the ground- that was indicative of dipping.

The
jury found appellant guilty as charged on all five counts.
The court granted a downward departure and sentenced
appellant to five consecutive terms of six years in prison,
for a total of 30 years in prison.

Analysis

On
appeal, appellant argues that Dooley's testimony did not
meet the requirements of section 90.702, Florida Statutes,
and Daubert. We agree.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;A.
Daubert ...

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